Advisory Opinion No. 2002-58

Re: Richard T. Reynolds

QUESTION PRESENTED

The petitioner, a Tiverton Economic Development Committee member, a municipal appointed position, requests an advisory opinion as to whether he is required to file a financial disclosure statement with the Ethics Commission.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Tiverton Economic Development Committee (TEDC) member, a municipal appointed position, is not required to file a financial disclosure statement pursuant to R.I. Gen. Laws § 36-14-16 since the TEDC acts in a purely advisory capacity and, therefore, is not a “municipal agency” for purposes of the Code of Ethics.

The Code of Ethics requires all state and municipal elected and appointed officials to file annual financial statements with the Ethics Commission. See R.I. Gen. Laws § 36-14-16.

Members of many Commissions serve as volunteers or are not compensated for their public service. However, the General Assembly has deemed that if an official is appointed by the highest governing body of the state or municipality or for a term of office and exercises governmental functions other than in an advisory nature, the public official is required to file a personal financial statement pursuant to the Code of Ethics. See R.I. Gen. Laws § 36-14-2(9).

Section 36-14-2(8)(ii) of the Code of Ethics defines a "municipal agency" as any agency in any branch of municipal government that "exercises governmental functions in other than … an advisory nature." Section 36-14-2002(4)(b) defines "municipal agency " using the same language as statutory Section (2)(8)(ii), except that it requires that an agency exercise governmental functions in other than a "purely advisory nature" in order for the members or employees of such agency to be exempted from the Code of Ethics. Finally, Section 36-14-2001(22), also a regulation promulgated by the Ethics Commission, further states that a "municipal agency" shall also include any entity that:

(a) exercises governmental functions other than in an advisory nature, and expends public funds in excess of $10,000 yearly, or;

(b) those entities whose directors or other governing members are appointed by or through the governing body or highest official of state or municipal government.

The Commission previously has found that certain boards or commissions are solely advisory in nature and need not file a financial disclosure form or comply with the substantive dictates of the Code of Ethics. A.O. 2001-23 (finding that a Warwick Affirmative Action Commission member is not required to file a financial disclosure statement since that Commission acts in a purely advisory capacity and, therefore, is not a “state or municipal agency” for purposes of the Code); A.O. 98-36 (advising a member of the Special Legislative Commission to Review Statewide Recycling Efforts and to Make Recommendations Therefor is not required to file a personal financial disclosure statement); A.O. 82-5 (finding the Newport Waterfront Commission is not a municipal agency since it does not expend public funds and serves as a strictly advisory body to the Town Council).

In accordance with the Town of Tiverton Code of Ordinances, the Town Council shall appoint five individuals to the TEDC for two-year terms, three of whom shall represent town businesses. The TEDC shall be responsible for the following:

(1) To understand the rules and regulations of the enterprise zone council.

(2) To assist the zone coordinator (town administrator) with required reporting to the state department of economic development.

(3) To assist in the search for and the attraction of businesses which would be favorable in the development and stability of the town’s tax base and the town’s economic future.

(4) To assist businesses to understand the rules and regulations of the enterprise zone council.

(5) To act as a liaison between town businesses and the town council, making recommendations to the town council that are in the best interest of the town and businesses.

(6) To select a representative from the committee to meet with the zone coordination committee, consisting of the zone coordinator (town administrator), the Portsmouth zone coordinator (town planner), the town building official and the chairperson of the Portsmouth economic development committee.

(7) To submit a brief written report on a quarterly basis to the town administrator and town council with a summary of applications issued to businesses, submitted to the department of economic development for certification, certified by the department of economic development as enterprise zone businesses and any other pertinent information.

(8) To submit a brief written report on an annual basis each January to the town administrator and the town council.

(Ord. of 2-27-95, § 1).

In a series of advisory opinions, the Commission previously opined that the Town of Little Compton Harbor Commission is not a "municipal agency" as that term is defined in the Code of Ethics and, therefore, its members are not subject to the provisions of the Code, including the financial disclosure mandate. E.g., A.O. 2000-13, A.O. 2000-14, A.O. 2000-15. There, the Harbor Commission’s duties and responsibilities, as set forth by charter, primarily consisted of making recommendations to the Town Council. In Advisory Opinion 2000-70, the Commission similarly held that the Little Compton Charter Review Commission is not a municipal agency because its recommendations to the Town Council are purely advisory, requiring votes by the Council and at a town meeting prior to adoption. The Commission further held that, to the extent any inconsistency exists between Section 36-14-2001(22) and Section 36-14-2002(4)(b), the latter controls as the more recently adopted provision.

Here, the TEDC makes recommendations to the Tiverton Town Council in the best of interest of the Town and businesses. The Town Council has the independent authority to act, whether consistent with or contrary to any recommendation received from the TEDC. Based upon the TEDC’s duties and responsibilities, and consistent with its prior opinions, the Commission concludes that the TEDC is not a "municipal agency," as that term is defined in the Code of Ethics, because its powers are purely advisory in nature. Therefore, the TEDC and its members need not abide by the statutory and regulatory requirements of the Code of Ethics, including the financial disclosure mandate.

Code Citations:

36-14-2(8)(ii)
36-14-2(9)
36-14-2001(22)
36-14-2002(4)(b)
36-14-4
36-14-16

Related Advisory Opinions:

2001-23
2000-37
2000-13
2000-14
2000-15
98-36
82-78
82-5
81-45

Keywords:

Code jurisdiction
Advisory body
Financial disclosure